Commentaries: Art. 42b

Data may only be disclosed to a foreign competition authority based on an act, an international agreement or with the consent of the undertaking concerned.
Without the consent of the undertaking concerned, the competition authorities may disclose confidential data, in particular business secrets, to a foreign competition authority on the basis of an international agreement only if:
1. the behaviour under investigation in the recipient state is also unlawful under Swiss law;
2. both competition authorities are investigating the same or related behaviour or transactions;
3. foreign competition authority uses the data only for the purpose of applyingprovisions of competition law or as evidence in relation to the subject matter of the investigation for which the competition authority requested the information;
4. the data is not used in criminal or civil proceedings;
5. the foreign procedural law safeguards party rights and official secrecy; and
6. the confidential data is not disclosed to the foreign competition authority in the context of an amicable settlement (Art. 29) or when assisting in the discovery and elimination of the restraint of competition (Art. 49a para. 2).
The competition authorities shall notify the undertaking concerned and invite it to state its views before transmitting the data to the foreign competition authority.